1
EXHIBIT 4.15: Form Series A Warrant
NEITHER THIS WARRANT NOR THE SHARES OF SERIES A PREFERRED STOCK ISSUABLE UPON
EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES ACT, AND NEITHER THIS WARRANT NOR THE
SHARES OF SERIES A PREFERRED STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT CAN
BE SOLD OR TRANSFERRED EXCEPT PURSUANT TO THE REGISTRATION PROVISIONS OF SUCH
ACTS OR AN EXEMPTION THEREFROM.
THE SALE, ASSIGNMENT, PLEDGE, ENCUMBRANCE, AND TRANSFER OF THIS WARRANT AND THE
SALE, ASSIGNMENT, PLEDGE, ENCUMBRANCE, TRANSFER AND VOTING OF THE SHARES OF
SERIES A PREFERRED STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT ARE SUBJECT TO
THE TERMS AND CONDITIONS OF AN AGREEMENT AND PLAN OF MERGER DATED DECEMBER 19,
1995 AMONG THE COMPANY AND XXXXXX TELECOMMUNICATIONS CORPORATION, COPIES OF
WHICH MAY BE OBTAINED UPON REQUEST FROM THE SECRETARY OF THE COMPANY.
_______________ Warrants
VOID AFTER ____________, ____
XXXXXX FIBER PROPERTIES, INC.
WARRANT CERTIFICATE
THIS CERTIFIES THAT for value received _______________________, or
registered assigns, is the owner of the number of Warrants set forth above,
each of which entitles the owner thereof to purchase, upon presentation and
surrender of this Warrant Certificate with the Form of Election to Purchase
attached hereto duly executed at any time prior to 4:00 P.M. (St. Louis time)
on ____________, ____, at the principal executive offices of Xxxxxx Fiber
Properties, Inc., a Delaware corporation (the "Company"), one fully paid and
nonassessable share of the $.01 par value Series A Voting Convertible Preferred
Stock of the Company ("Series A Preferred Stock") at the following purchase
price per share ("Purchase Price"):
Purchase Price
Per Share* If Exercised
--------------- ------------
$220.00 Prior to [November 10, 1996];
$290.00 thereafter but prior
to [November 10, 1997];
$380.00 After [November 10, 1997].
1
2
* Purchase price to be adjusted to reflect the 20 for 1 Stock Split.
The Warrants evidenced by this Warrant Certificate may be exercised in whole
but not in part.
The number of Warrants evidenced by this Warrant Certificate (and the
number of shares of Series A Preferred Stock which may be purchased upon
exercise thereof) set forth above, and each of the Purchase Prices set forth
above, are the number and Purchase Prices as of December 31, 1995, based on the
shares of Series A Preferred Stock as constituted at such date. In order to
prevent dilution of the exercise rights granted under this Warrant, each of the
Purchase Prices set forth above and the number of shares of Series A Preferred
Stock which may be purchased upon exercise of this Warrant shall be subject to
adjustment from time to time as follows:
(i) Subdivision or Combination of Series A Preferred Stock. If
and whenever on or after the original date of issuance of this Warrant the
Company (A) subdivides (by any stock split, stock dividend, recapitalization or
otherwise) its outstanding shares of Series A Preferred Stock into a greater
number of shares, the Purchase Prices set forth above in effect immediately
prior to such subdivision shall be proportionately reduced, or (B) combines (by
reverse stock split or otherwise) its outstanding shares of Series A Preferred
Stock into a smaller number of shares, the Purchase Prices set forth above in
effect immediately prior to such combination shall be proportionately
increased. Whenever the Purchase Prices set forth above are adjusted, the
holder of this Warrant shall thereafter be entitled to purchase at the new
Purchase Prices the number of shares of Series A Preferred Stock obtained by
multiplying the Purchase Prices in effect immediately prior to such adjustment
by the number of shares of Series A Preferred Stock purchasable pursuant hereto
immediately prior to such adjustment and dividing the product thereof by the
new Purchase Prices.
(ii) Reorganization, Reclassification, Consolidation, Merger or
Sale. Any reorganization, reclassification, consolidation, merger, sale of all
or substantially all of the Company's assets to another person or other
transaction which is affected in such a manner that holders of Series A
Preferred Stock are entitled to receive (either directly or upon subsequent
liquidation) stock, securities or assets with respect to or in exchange for
Series A Preferred Stock is referred to herein as an "Organic Change". Prior
to the consummation of any Organic Change, the Company shall make appropriate
provision to insure that the holder of this Warrant shall thereafter have the
right to acquire and receive, in lieu of or in addition to (as the case may be)
the shares of Series A Preferred Stock immediately theretofore acquirable and
receivable upon the exercise of this Warrant, such shares of stock, securities
or assets as such holder would have received in connection with such Organic
Change if the holder of this Warrant had exercised this Warrant immediately
prior to such Organic Change. In each such case, the Company shall also make
appropriate provision to insure that the adjustment provisions of this Warrant
shall thereafter continue to apply (including, in the case of any such
consolidation, merger or sale in which the successor entity or purchasing
entity is other than the Company, an immediate adjustment of the Purchase Price
to the value for the Series A Preferred Stock reflected by the terms of such
consolidation, merger or sale, and a corresponding immediate adjustment in the
number of shares of Series A Preferred Stock acquirable and receivable upon
exercise of this Warrant, if the value so reflected is less than the Purchase
Price in effect immediately prior to such consolidation, merger or sale). The
Company shall not effect any consolidation, merger or sale unless, prior to the
consummation thereof, the successor corporation (if other than the Company)
resulting from such consolidation or merger or the corporation purchasing such
assets assumes by written instrument the obligation to deliver to the holder of
this Warrant such shares of stock, securities or assets as, in accordance with
the foregoing provisions, such holder may be entitled to acquire.
2
3
(iii) Certain Events. If any event occurs of the type
contemplated by the adjustment provisions of this Warrant but not expressly
provided for by such provisions, then the Company's board of directors shall
make an appropriate adjustment in the Purchase Prices set forth above so as to
protect the rights of the holder of this Warrant; provided that no such
adjustment shall increase the Purchase Prices set forth above as otherwise
determined pursuant hereto or decrease the number of shares of Series A
Preferred Stock issuable upon exercise of this Warrant.
(iv) Notices. Immediately upon any adjustment of the Purchase
Price, the Company shall give written notice thereof to the holder of this
Warrant, setting forth in reasonable detail and certifying the calculation of
such adjustment. The Company shall also give written notice to the holder of
this Warrant at least 20 days prior to the date on which the Company closes its
books or takes a record (A) with respect to any dividend or distribution upon
the Series A Preferred Stock or upon its $0.01 par value Voting Common Stock
("Common Stock"), (B) with respect to any pro rata subscription offer to
holders of the Series A Preferred Stock or the Common Stock or (C) for
determining rights to vote with respect to any Organic Change, dissolution or
liquidation, and the date on which any Organic Change shall take place.
(v) Purchase Rights. If at any time the Company grants, issues
or sells any options, convertible securities or rights to purchase stock,
warrants, securities or other property (the "Purchase Rights") pro rata to each
record holder of the Series A Preferred Stock or the Common Stock, in its
capacity as such record holder, then the holder of this Warrant shall
thereafter be entitled to acquire, in addition to the shares of Series A
Preferred Stock acquirable and receivable upon exercise of this Warrant (and
the shares of Common Stock issuable upon conversion thereof), and upon the
terms applicable to such Purchase Rights, the aggregate Purchase Rights which
such holder could have acquired if such holder had held the number of shares of
Series A Preferred Stock acquirable upon exercise of this Warrant (or the
shares of Common Stock issuable upon conversion thereof) immediately before the
date on which a record is taken for the grant, issuance or sale of such
Purchase Rights, or, if no such record is taken, the date as of which the
record holders of the Series A Preferred Stock or the Common Stock are to be
determined for the grant, issue or sale of such Purchase Rights.
The Company covenants that it will at all times reserve and keep
available out of its authorized Series A Preferred Stock and Common Stock,
solely for the purpose of issuance upon exercise of this Warrant and conversion
of the shares of Series A Preferred Stock issuable upon exercise of this
Warrant, such number of shares of Series A Preferred Stock and Common Stock as
shall from time to time be issuable upon the exercise of this Warrant and
conversion of the shares of Series A Preferred Stock issuable upon exercise of
this Warrant; and if at any time the number of authorized but unissued and
issued but not outstanding shares of the Series A Preferred Stock and Common
Stock, on a fully diluted basis, shall not be sufficient to effect the exercise
of this Warrant at the Purchase Price then in effect and conversion of the
shares of Series A Preferred Stock issuable upon exercise of this Warrant, the
Company will take such corporate action as may, in the opinion of its counsel,
be necessary to increase its authorized but unissued or issued but not
outstanding shares of the Series A Preferred Stock and Common Stock to such
number of shares as shall be sufficient for such purpose. The Company
covenants that all shares of Series A Preferred Stock and Common Stock which
shall be so issuable, when issued upon exercise of this Warrant or conversion
of such Series A Preferred Stock, shall be duly and validly issued, fully-paid
and non-assessable.
The issuance of certificates for shares of the Series A Preferred
Stock upon the exercise of this Warrant shall be made without charge to the
holder hereof for any issuance tax in respect of the issuance of such
certificates or other cost incurred by the Company in connection with such
exercise and the related issuance of shares of Series A Preferred Stock.
3
4
No holder of this Warrant Certificate shall be entitled to vote or
receive dividends or be deemed the holder of Series A Preferred Stock or any
other securities of the Company which may at any time be issuable on the
exercise hereof for any purpose, nor shall anything contained herein be
construed to confer upon the holder hereof, as such, any of the rights of a
shareholder of the Company or any right to vote for the election of directors
or upon any matter submitted to shareholders at any meeting thereof, or to give
or withhold consent to any corporate action (whether upon any recapitalization,
issue of stock, reclassification of stock, change of par value, consolidation,
merger, conveyance, or otherwise), or except as provided above, to receive
notice of meetings, or to receive dividends of subscription rights or
otherwise, until the Warrant or Warrants evidenced by this Warrant Certificate
shall have been exercised.
Every holder of this Warrant Certificate by accepting the same
consents and agrees with the Company that:
(a) This Warrant Certificate is transferable only on the registry
books of the Company if surrendered at the principal office of the
Company, duly endorsed, or accompanied by a proper instrument of
transfer; and
(b) The Company may deem and treat the person in whose name this
Warrant Certificate is registered as the absolute owner thereof and of
the Warrants evidenced hereby (notwithstanding any notations of
ownership or writing on this Warrant Certificate made by anyone other
than the Company) for all purposes whatsoever, and the Company shall
not be affected by any notice to the contrary.
All notices, demands and other communications provided for hereunder
shall be in writing and shall be deemed to have been given when delivered
personally to the recipient, one business day after being sent to the recipient
by reputable express courier service (charges prepaid) or three business days
after being mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications shall be delivered or sent (i) to the Company at its principal
executive offices and (ii) to the holder of this Warrant at its address as it
appears on the Company's records (or such other address as may be indicated by
the holder of this Warrant upon written notice to the Company).
THIS WARRANT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
SUBSTANTIVE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ITS CONFLICTS OF
LAWS PRINCIPLES.
4
5
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
and issued by its duly authorized officer as of ____________, ____.
XXXXXX FIBER PROPERTIES, INC.
By:
-----------------------------------
Vice Chairman
ATTEST:
-----------------------------------
Secretary
5
6
FORM OF ELECTION TO PURCHASE
(TO BE EXECUTED IF HOLDER DESIRES TO EXERCISE THIS WARRANT CERTIFICATE.)
To Xxxxxx Fiber Properties, Inc.
The undersigned hereby irrevocably elects to exercise the Warrants
represented by this Warrant Certificate to purchase the shares of Series A
Preferred Stock issuable upon the exercise of such Warrants and requests that
certificates for such shares be issued in the name of:
Please insert social security
or other identifying number
________________________________________________________________________________
(Please print name and address)
Dated: _______________________________, 199_____
__________________________________________________
Signature
(SIGNATURE MUST CONFORM IN ALL RESPECTS TO NAME OF
XXXXXX AS SPECIFIED ON THE FACE OF THIS WARRANT
CERTIFICATE)
7
FORM OF ASSIGNMENT
(TO BE EXECUTED BY THE REGISTERED HOLDER IF SUCH HOLDER DESIRES TO TRANSFER
THIS WARRANT CERTIFICATE.)
FOR VALUE RECEIVED ___________ hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
____________________________________ this Warrant Certificate, together with
all right, title and interest therein, and does hereby irrevocably constitute
and appoint ________________________________________________________ Attorney,
to transfer the within Warrant Certificate on the books of the within-named
Company, with full power of substitution.
Dated: ______________________________, 199____
__________________________________________________
Signature
(SIGNATURE MUST CORRESPOND IN ALL RESPECTS TO THE
NAME OF XXXXXX AS SPECIFIED ON THE FACE OF THIS
WARRANT CERTIFICATE).
